Jurisdiction presents another likely motivation for filing. Tamla/Motown Records, a Detroit-based company, released Gaye’s “Got to Give it Up” single in 1977 and Bridgeport Music, who Funkadelic founding member George Clinton contends “stole” the rights to his songs, is headquartered in Southfield, Michigan. Bridgeport, who has brought hundreds of copyright infringement suits against R&B and hip-hop artists, is one of the named parties in the Sixth Circuit case that established the “[g]et a license or do not sample” standard. While sampling per se does not appear to be the issue with “Blurred Lines,” Thicke’s chances of avoiding infringement claims improve in the Ninth Circuit, where the court in Newton v. Diamond LLC BMG found the use of twice as many copied notes as were sampled in Bridgeport to lack the necessary “substantial similarity” element.

In the Ninth Circuit, the copyright owner must prove both ownership of a valid copyright and that the new artist copied original elements from the copyrighted work. Here, Thicke et al. stipulate Bridgeport and the Gaye’s ownership, but state “there are no similarities between [Thicke’s] composition and those the claimants allege they own, other than commonplace musical elements . . . Being reminiscent of a ‘sound’ is not copyright infringement.”

Access and “substantial similarity” to the copyrighted work, the elements of “copying” used to assess an allegation of infringement, are “inextricably linked” by an inverse ratio rule, which “requires a lesser showing of substantial similarity if there is a strong showing of access.” In an interview with GQ, Thicke’s description of the conception of “Blurred Lines” amounts to a very strong showing of access: “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’” To prove infringement, the Gayes’ claim would require a lesser showing of substantial similarity.

In their 1988 book The Manual (How to Have a Number One the Easy Way), influential electronic dance music producers Bill Drummond and Jimmy Cauty posit an alternate reality where “at least eighty per cent [of the copyright] would have gone to the creators of the groove,” a reality incrementally approached by a recent decision in Germany. On December 13, 2012, Kraftwerk won a twelve-year copyright infringement suit against Pelham & Haas over their use of a two-second sample from the percussion track of 1977’s “Metall auf Metall” in the 1997 single “Nur Mir,” featuring rapper Sabrina Setlur. After a bizarre series of demonstrations in the courtroom involving a 1996 Akai Sampler and the striking of metal on metal, the Federal Court of Justice of Germany delineated a standard whereby sampling is only permissible if the new artist could not produce the same effect at the time of recording. An interesting development for the creators of groove and one unlikely to affect American artists, though even if it did, as “Blurred Lines” recreated but did not sample the rhythm of “Got to Give It Up,” Thicke and Williams would likely be in the clear.

Daniel Sheerin

Daniel Sheerin, a second year student at Fordham Law, is a staff member of the Intellectual Property, Media & Entertainment Law Journal. After graduating Tufts University, he moved to New York City to play drums, which he can still do, if called upon.

The Fordham Intellectual Property, Media & Entertainment Law Journal is one of the leading scholarly law journals dedicated to the publication in all areas of intellectual property law.